TERMS AND CONDITIONS FOR THE HIRE OF EQUIPMENT & PROVISION OF SERVICES TO CONSUMERS AND BUSINESSES
FOR THE ATTENTION OF CONSUMERS
What these terms cover: These are the terms and conditions on which we, ForceDry (FD), supply and hire equipment to you and provide other services.Terms which are marked as being applicable to trade and business customers and are unlikely to be relevant to you are an individual.
These terms and conditions tell you who we are, how we will supply and hire equipment and services to you, how you and we may change or end the contract, what to do if there is a problem and other important information. Please read them carefully.
FOR THE ATTENTION OF TRADE AND BUSINESS CUSTOMERS
Customers who are hiring the Equipment for purposes relating to its trade, business craft or profession, please note the following additional clauses:
- Hire Charges and Deposit – Clause 4 to 4.7
- Delivery – Clause 5
- Warranty – Clause 8
- Liability – Clause 9.6 to 9.13
- Consequences of Termination – Clause 11.4 to 11.6
Should there be any inconsistency between these clauses and other clauses in the terms and conditions, the aforementioned clauses shall prevail.
These terms and conditions apply to the agreement between FD and the customer to the exclusion of any other terms that the customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1. INFORMATION ABOUT FD AND HOW TO CONTACT FD
1.1 We are ForceDry Limited, a company registered in England and Wales. Our company registration number is 08602398 and our registered office is at 1110 Elliott Court Business Park, Herald Ave, Coventry CV5 6UB
1.2 You can contact us by telephoning us at 03301 244100 or by writing to us via email at email@example.com or to ForceDry Limited, Unit 1, Sugarswell Business Park, Oxon, OX15 6HW
1.3 If we have to contact you we will do so by telephone or by writing to you at the email address or postal address provided.
2. DEFINITIONS AND INTERPRETATION
2.1 The following definitions and rules of interpretation apply in this agreement.
Business Day: a day other than a Saturday, Sunday, bank or public holiday.
Consumer: an individual acting for purposes which are wholly or mainly outside that individual’s trade, business craft or possession.
Delivery:the transfer of physical possession of the Equipment to the customer at the customer’s premises or the site.
Deposit:advance payment of the sum of £500 per boiler rig or any other payment required by FD in relation to the Equipment which is held as security by FD.
Equipment:boiler rig, dehumidifier, air moving fan for use in screed drying systems including all the components and parts, records, logbooks, manuals and handbooks for it, and all replacements, renewals of, additions and substitutions for it.
Hire Charges:the hire charges are calculated per day, 7 days per week as set out in the Order as calculated by reference to the daily rate for Equipment hire as set out in the Order or as otherwise published on ForceDry’s website from time to time.
Hire Period:the period commencing when the Equipment is delivered by FD to the customer’s premises or site and ending when FD regains possession.
Order:the customer’s order for the Equipment and Services.
Service Charges:the service charges set out in the Order as calculated by reference to the daily rate for Services as set out in the Order or as otherwise published on ForceDry’s website from time to time.
Services:the services supplied by FD to the customer as set out in the Order.
Total Loss:the Equipment is, in FD’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.
VAT:value added tax chargeable under the Value Added Tax Act 1994.
2.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
2.3 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
2.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
3. EQUIPMENT HIRE & SUPPLY OF SERVICES
3.1 FD shall hire the Equipment to the customer for the Hire Period subject to the terms and conditions of this agreement. In the absence of the customer’s written acceptance of these terms and conditions, the customer will be deemed to have accepted these terms and conditions at the time of delivery of the Equipment or the commencement of the provision of Services, whichever is earliest.
3.2 FD shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the customer’s quiet possession of the Equipment.
3.3 FD shall supply the Services to the customer in accordance with the Order in all material respects.
3.4 FD shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.5 FD warrants to the customer that it shall provide the Services using reasonable care and skill.
4. HIRE CHARGES AND DEPOSIT
4.1 When you must pay and how you must pay:The customer shall pay to FD in advance of Delivery or the commencement of Services (whichever is earliest) the Hire Charges, the Service Charges and the Deposit in full and cleared funds. Alternatively, for customers with an account, the customer shall pay the Hire Charges, the Service Charges and the Deposit within 30 days of the date of FD’s invoice.
4.2 The customer shall also pay to FD in full and cleared funds any additional Hire Charges or Service Charges beyond those set out in the Order, for example incurred in extending the Hired Period further or incurred in the provision of additional Services to the customer, within 14 days of receipt of an invoice relating to any such additional Hire Charges or Service Charges unless otherwise agreed by FD. FD shall be entitled to apply the Deposit (in whole or part) against such additional Hire Charges or Service Charges in accordance with clause 4.4.
4.3 VAT: The Hire Charges and Service Charges are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the customer at the rate and in the manner from time to time prescribed by law.
4.4 Deductions from the Deposit:The Deposit is a deposit against additional Hire Charges or Service Charges referred to in clause 4.2, default by the customer of payment of any Hire Charges or any loss of or damage caused to the Equipment. If the customer incurs additional Hire Charges or Service Charges, fails to make payment of any Hire Charges or Service Charges, or causes any loss or damage to the Equipment (in whole or in part), FD shall be entitled to apply the Deposit against such additional charges, default, loss or damage. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Hire Period.
4.5 If FD has agreed trade credit terms with the customer, the customer must pay the Hire Charges and the Service Charges within 30 days of the date of FD’s invoice.
4.6 All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.7 If the customer fails to make any payment due to FD by the due date for payment, then, without limiting FD’s remedies under clause 10:
a) the customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The customer shall pay the interest together with the overdue amount; and
b) FD reserves the right to automatically charge such card with any unpaid charges using credit and debit card details held and managed by World Pay.
5.1 Unless otherwise agreed, it is the responsibility of FD to deliver the Equipment to the customer at the customer’s premises or site. FD will use all reasonable endeavours to effect Delivery by the date and time agreed between the parties.
5.2 Unless otherwise agreed, it is the responsibility of FD to collect the Equipment from the customer at the end of the Hire Period.
6. TITLE, RISK AND INSURANCE
6.1 The Equipment will remain the property of FD:The Equipment will at all times remain the property of FD, and the customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these terms and conditions).
6.2When the customer becomes responsible for the Equipment:The risk of loss, theft, damage or destruction of the Equipment shall pass to the customer on Delivery. The Equipment shall remain at the sole risk of the customer during the Hire Period and any further term during which the Equipment is in the possession, custody or control of the customer (Risk Period) until such time as the Equipment is collected by FD. During the Hire Period and the Risk Period, the customer shall, at its own expense, obtain and maintain the following insurances:
a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as FD may from time to time nominate in writing;
b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as FD may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as FD may from time to time consider reasonably necessary and advise to the customer.
6.3 Notice of damage or loss:The customer shall immediately notify FD in the event of any loss, accident or damage to the Equipment arising out of or in connection with the customer’s possession or use of the Equipment.
6.4 If the customer fails to effect or maintain any of the insurances required under this agreement, FD shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the customer.
6.5 The customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to FD and proof of premium payment to FD to confirm the insurance arrangements.
7. CUSTOMER’S RESPONSIBILITIES
7.1.1 Care of the Equipment: The customer shall during the term of this agreement:
a) ensure that the Equipment is kept and operated in a suitable environment, which shall meet any requirements set out by FD, used only for the purposes for which it is designed, and operated in a proper manner and in accordance with any operating instructions provided by FD. For the avoidance of doubt, FD shall not be responsible for any loss or damage caused by the customer’s failure to follow the operating instructions for the Equipment issued by FD;
b) take such steps (including those notified by FD) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times protected from freezing, and the damage that might otherwise be caused to the Equipment were it not so protected, during the winter months or at any other time when such damage might otherwise occur;
c) where the Equipment requires fuel, oil and/or electricity, ensure that the proper type and/or voltage is used and that where appropriate, the Equipment is properly installed by a qualified and competent person;
d) take such steps (including compliance with all safety and usage instructions provided by FD) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being used, cleaned or maintained. For the avoidance of doubt, FD shall not be responsible for any loss or damage caused by the customer’s failure to follow the safety and usage instructions for the Equipment issued by FD;
e) maintain the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on Delivery (fair wear and tear only excepted);
f) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment.
g) ensure that at all times the Equipment remains identifiable as being FD’s property and not remove any labels from and/or interfere with or make any alterations to the Equipment, its working mechanisms or any other parts of the Equipment;
h) keep FD fully informed of all material matters relating to the Equipment, including immediately notifying FD of any breakdown, need for replacement part(s), loss and/or damage to the Equipment, other property and/or injury to any person;
i) at all times keep the Equipment in the customer’s control and keep FD informed of where it is located;
j) at all times during the Hire Period keep the Equipment in a secure indoor storage space when not in use or when being stored overnight;
k) permit FD or its authorised representative to inspect the Equipment at all reasonable times and for this purpose to enter any premises at which the Equipment is located, and will allow reasonable access and facilities for the inspection;
l) not, without the prior written consent of FD, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
m) not without the prior written consent of FD, attach the Equipment to any land or building so that it becomes a permanent or immovable fixture on such land or building. If the Equipment does become fixed to any land or building then the Equipment must be capable of being removed and the customer shall repair and make good any damage caused by the fixing or removing of the Equipment from any land or building and will be responsible for all losses, costs or expenses suffered by FD as a result of such fixing or removal;}
n) not do or permit any act or thing which will or may jeopardise the right, title and/or interest in the Equipment and, where the Equipment has become fixed to any land or building, the customer must take all steps to ensure that FD may enter such land or building and recover the Equipment both during the term of this agreement and for a reasonable period after, including by obtaining from any person having an interest in such land or building, confirmation in writing that that person does not have any rights in the Equipment and gives FD a right to enter onto such land or building to remove the Equipment;
o) not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is confiscated, seized or taken, the customer will notify FD and the customer shall at its own expense use its best endeavours to release the Equipment immediately.
p) not use the Equipment for any unlawful purpose;
q) at the end of the Hire Period or on earlier termination of this agreement, allow FD or its carrier access to the customer’s premises or to collect the Equipment; and
r) not do or permit anything to be done which could invalidate the insurances referred to in clause 6.
7.2 The customer shall be responsible for compliance with all relevant regulations issued by the Government or Local Authorities, including regulations relating to any environmental acts and health and safety at work. The customer shall indemnify FD for and against any losses, charges or fines incurred by FD as a result of the operation of the Equipment during the Hire Period.
7.3 The customer acknowledges that FD shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the customer or its officers, employees, agents and contractors.
8.1 The customer’s legal rights:FD warrants that the Equipment shall substantially conform with its description (as made available by FD), be of satisfactory quality and fit for any purpose held out by FD. The customer acknowledges that no warranties are given by
FD, express or implied, as to drying times for floor screeds whilst using the Equipment or residual moisture levels within floor screeds following the Hire Period. Any advice given in respect of any such drying times or residual moisture levels are estimates only.
8.2 Manufacturer’s warranty:Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by FD, the customer shall be entitled only to such warranty or other benefit as FD has received from the manufacturer.
8.3 Repair: FD shall use all reasonable endeavours to remedy, repair or replace, free of charge, any material defect in the Equipment which manifests within the Hire Period, provided that:
a) the customer notifies FD of any such defect within a reasonable time of becoming aware of the defect;
b) FD is permitted to make a full examination of the alleged defect;
c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than FD’s authorised personnel; and
d) the defect is directly attributable to defective material, workmanship or design
8.4 FD will replace the Equipment that it is unable to repair with a suitable replacement.
- If FD fails to remedy any material defect in the Equipment in accordance with clause
8.3 or replace the Equipment with a suitable replacement in accordance with clause 8.4, FD shall, at the customer’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Hire Charges payable during the remaining term of the agreement and, if relevant, return any Deposit (or any part of it).
9.1 FD is responsible to the customer for foreseeable loss and damaged caused by it:Nothing in these terms shall exclude or limit any statutory rights of the customer which may not be excluded or limited by law. If FD fails to comply with these terms, it is responsible for loss or damage suffered by the customer as a foreseeable result of breaking this contract or failing to use reasonable care and skill. FD is not responsible for loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time of the Order, FD and the customer knew it might happen, for example if it was discussed during the sales process.
9.2 FD is not liable for business losses:FD only hires the Equipment to consumers for domestic and private use. If the Equipment and/or Services is used for any commercial, business or re-sale purpose FD will have no liability to the Customer for any loss of profit, loss of business, business interruption or loss of business opportunity.
9.3 If the Equipment is lost, damaged, destroyed or stolen whilst in the customer’s care, the customer will be liable for the full cost of repairing or replacing the Equipment payable immediately on the customers receipt of a demand from FD, less the amount FD receives from insurance and shall in addition remain liable for the full Hire Charges for the remainder of the Hire Period and Risk Period.
9.4 FD shall not be liable for any loss or damage caused by the customer’s failure to comply with:
(a) any advice provided by FD to the customer; or
(b) the operating, safety and usage instructions for the Equipment issued by FD including in accordance with clauses 7.1(a) and 7.1(d) of this agreement or otherwise.
9.5 Any advice given in respect of drying times for floor screeds whilst using the Equipment or otherwise, or in respect residual moisture levels within floor screeds following the Hire Period are estimates only and FD shall not be liable to the customer in the event that drying times or residual moisture levels advised are or are not achieved.
CLAUSES 9.6 – 9.13 ARE ONLY APPLICABLE TO TRADE AND BUSINESS CUSTOMERS
9.6 Without prejudice to clause 9.7, FD’s maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the value of the Equipment ordered by the customer in the Order under which or in relation to which the liability arises.
9.7 Nothing in this agreement shall exclude or in any way limit:
a) either party’s liability for death or personal injury caused by its own negligence;
b) either party’s liability for fraud or fraudulent misrepresentation; or
c) any other liability which cannot be excluded by law.
9.8 This agreement sets forth the full extent of FD’s obligations and liabilities in respect of the Equipment and hiring of the Equipment to the customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on FD except as specifically stated in this agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this agreement whether by statute, common law or otherwise, is expressly excluded.
9.9 FD shall have no liability to the customer to the extent that the customer is covered by, or benefits from, any insurance policy but the customer remains liable for the Equipment notwithstanding that FD or the customer has insurance in place which would indemnify them.
9.10 The customer shall indemnify FD on demand against any loss or damage to the Equipment arising out of or in connection with any negligence, misuse, or mishandling of Equipment in accordance with clause 7.2 and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the customer to comply with the terms of this agreement.
9.11 The customer shall indemnify FD against all losses, costs, charges, damages and expenses incurred as a result of the Equipment being confiscated, seized or taken out of its possession or control under any distress, execution or other legal process.
9.12 FD shall have no Liability for additional damage, loss, claims, costs or expenses causes or contributed to by the customer’s continued use of defective Equipment after a defect has become apparent or suspected or should reasonably have become apparent to the customer.
9.13Without prejudice to clause 9.7, FD shall not be liable under this agreement for any:
a) loss of profit
b) loss of revenue
c) loss of business
d) wasted management or office time
e) business interruption or
f) indirect or consequential loss or damage, in each case, however caused, even if foreseeable.
10.1 FD may end the contract if the customer breaks it: Without affecting any other right or remedy available to it, FD may terminate the agreement at any time by giving notice to the customer if:
a) the customer fails to pay any amount due under this agreement on the due date and does not make payment within seven (7) days of being reminded payment is due;
b) the customer commits a material breach of any other term which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of two (2) days after being notified to do so;
c) the customer repeatedly breaches any of these terms;
d) the customer fails to return the Equipment to FD or make the Equipment available for collection after being requested to do so in accordance with its rights under these terms;
e) the customer (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a company) suspends, or threatens to suspend, payment of its debts is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets or a petition is filed in connection with the winding up of the customer;
f) a creditor or encumbrancer of the customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the customer’s assets and such attachment or process is not discharged within fourteen (14) days;
10.2 A material breach means a substantial breach:For the purposes of clause 10.1(b), material breachmeans a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which FD would otherwise derive from:
a) a substantial portion of this agreement; or
b) any of the obligations set out in clause 7, over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
10.3 This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.
11. CONSEQUENCES OF TERMINATION
11.1 What happens when the contract ends:Upon termination of the contract between FD and the customer, however caused:
a) FD’s consent to the customer’s possession of the Equipment shall terminate;
b) the customer shall make the Equipment available for collection by FD; and
c) without prejudice to any other rights or remedies of the customer, the customer shall pay to FD all Hire Charges and other sums due but unpaid at the date of termination together with any interest accrued.
11.2 The customer must compensate FD if it breaks the contract:Upon termination of this agreement in the situations set out in clause 10.1 and 10.3 or any other break of the contract by the customer which is accepted by FD or pursuant to clause 10.3, the customer shall pay to FD a sum equal to the whole of the Hire Charges that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Hire Period. Such sums may be partly or wholly recovered from any Deposit.
11.3 The sums payable in clause 11.2 is the agreed compensation for FD’s loss and shall be payable in addition to the sums payable in accordance with clause 11.1(c).
CLAUSES 11.4 – 11.6 ARE ONLY APPLICABLE TO TRADE AND BUSINESS CUSTOMERS
11.4 Upon termination, however caused, FD may, by its authorised representatives, without notice and at the customer’s expense, retake possession of the Equipment and for this purpose may enter any premises at which the Equipment is located.
11.5 Without prejudice to any other rights or remedies of the customer, the customer shall pay to FD any costs and expenses incurred by FD in recovering the Equipment and/or collecting any sums due under these terms.
11.6 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
12. RETURN OF EQUIPMENT
12.1 The Equipment must be returned in good condition:The Equipment must be returned to FD in the same condition as when it was supplied (fair wear and tear only during the Hire Period excepted).
12.2 The time the Equipment must be returned:The customer must make the Equipment available for collection by FD at the time and date on which the Hire Period ends, as stated in the Order. The customer will be charged for each 24 hour period that the Hire Period is extended.
13. FORCE MAJEURE
Neither party shall have any liability to the customer for any delay and/or non-performance to the extent that such delay or failure to perform any results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
14. OTHER IMPORTANT TERMS
14.1 FD may transfer this agreement to someone else. FD may transfer its rights and obligations under these terms to another organisation. FD will always inform the customer in writing if this happens and will ensure that the transfer will not affect the customer’s rights under these terms and conditions.
14.2 The customer needs FD’s consent to transfer its rights to someone else. The customer may only transfer its rights and obligations under these terms to another person if FD agrees to this in writing.
14.3 Nobody else has any rights under this contract. This contract is between the Customer and FD. No other person shall have any rights to enforce any of its terms. Neither party will need to get the agreement of any other person in order to end this contract or make any changes to these terms.
14.4 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
14.5 Even if FD delays in enforcing this contract, FD can still enforce it later. If FD does not insist immediately that the customer do anything it is required to do under these terms, or if FD delays in taking steps against the customer in respect of it breaking this contract, that will not mean that the customer does not have to do those things and it will not prevent FD taking steps against the customer at a later date. For example, if the customer misses a payment and FD does not chase the customer but continue to hire the Equipment, it can still require the customer to make the payment at a later date.
14.6 Which laws apply to this contract and where the customer may bring legal proceedings.These terms are governed by English law and the customer can bring legal proceedings in respect of the hire of the Equipment in the English courts.